FIRST DIVISION [G.R. No. 142396. February 11, 2003] KHOSROW MINUCHER, petitioner, vs. HON.

COURT OF APPEALS and ARTHUR SCALZO, respo ndents. D E C I S I O N VITUG, J.: Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also known as the Dangerous Drugs Act of 1972, was filed again st petitioner Khosrow Minucher and one Abbas Torabian with the Regional Trial Co urt, Branch 151, of Pasig City. The criminal charge followed a buy-bust operatio n conducted by the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to ha ve been seized. The narcotic agents were accompanied by private respondent Arth ur Scalzo who would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino rendered a de cision acquitting the two accused. On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Tr ial Court (RTC), Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and circumstances surround ing the case. "The testimony of the plaintiff disclosed that he is an Iranian national. He ca me to the Philippines to study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor Attach for th e Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of I ran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Nations and continued to stay in the Philippines. He headed the Iranian Nationa l Resistance Movement in the Philippines. He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to him by a certain Jose Iigo, an informer of the Intellige nce Unit of the military. Jose Iigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintif f assisted as head of the anti-Khomeini movement in the Philippines. During his first meeting with the defendant on May 13, 1986, upon the introductio n of Jose Iigo, the defendant expressed his interest in buying caviar. As a matt er of fact, he bought two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and oth er Iranian products was his business after the Khomeini government cut his pensi on of over $3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff his calling card, which showed that he is working a t the US Embassy in the Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of the United States, and gave his addres s as US Embassy, Manila. At the back of the card appears a telephone number in defendant s own handwriting, the number of which he can also be contacted. It was also during this first meeting that plaintiff expressed his desire to obta in a US Visa for his wife and the wife of a countryman named Abbas Torabian. Th e defendant told him that he [could] help plaintiff for a fee of $2,000.00 per v isa. Their conversation, however, was more concentrated on politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again. On May 19, 1986, the defendant called the plaintiff and invited the latter for di nner at Mario's Restaurant at Makati. He wanted to buy 200 grams of caviar. Pl aintiff brought the merchandize but for the reason that the defendant was not ye

t there, he requested the restaurant people to x x x place the same in the refri gerator. Defendant, however, came and plaintiff gave him the caviar for which h e was paid. Then their conversation was again focused on politics and business. On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets whi ch plaintiff valued at $27,900.00. After some haggling, they agreed at $24,000. 00. For the reason that defendant did not yet have the money, they agreed that defendant would come back the next day. The following day, at 1:00 p.m., he cam e back with his $24,000.00, which he gave to the plaintiff, and the latter, in t urn, gave him the pair of carpets. At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly proceeded to the latter's bedroom, where the latt er and his countryman, Abbas Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the defendant fo r the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines very soon and requested him to com e out of the house for a while so that he can introduce him to his cousin waitin g in a cab. Without much ado, and without putting on his shirt as he was only i n his pajama pants, he followed the defendant where he saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldi ers with 6 Americans, all armed. He was handcuffed and after about 20 minutes i n the street, he was brought inside the house by the defendant. He was made to sit down while in handcuffs while the defendant was inside his bedroom. The def endant came out of the bedroom and out from defendant's attach case, he took some thing and placed it on the table in front of the plaintiff. They also took plai ntiff's wife who was at that time at the boutique near his house and likewise ar rested Torabian, who was playing chess with him in the bedroom and both were han dcuffed together. Plaintiff was not told why he was being handcuffed and why th e privacy of his house, especially his bedroom was invaded by defendant. He was not allowed to use the telephone. In fact, his telephone was unplugged. He as ked for any warrant, but the defendant told him to `shut up. He was nevertheless told that he would be able to call for his lawyer who can defend him. The plaintiff took note of the fact that when the defendant invited him to come o ut to meet his cousin, his safe was opened where he kept the $24,000.00 the def endant paid for the carpets and another $8,000.00 which he also placed in the sa fe together with a bracelet worth $15,000.00 and a pair of earrings worth $10,00 0.00. He also discovered missing upon his release his 8 pieces hand-made Persia n carpets, valued at $65,000.00, a painting he bought for P30,000.00 together wi th his TV and betamax sets. He claimed that when he was handcuffed, the defenda nt took his keys from his wallet. There was, therefore, nothing left in his hou se. That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers, particularly in Australia, America, Central As ia and in the Philippines. He was identified in the papers as an international drug trafficker. x x x In fact, the arrest of defendant and Torabian was likewise on television, not on ly in the Philippines, but also in America and in Germany. His friends in said places informed him that they saw him on TV with said news. After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they were detained for three days without food and wa ter."[1] During the trial, the law firm of Luna, Sison and Manas, filed a special appeara

nce for Scalzo and moved for extension of time to file an answer pending a suppo sed advice from the United States Department of State and Department of Justice on the defenses to be raised. The trial court granted the motion. On 27 Octobe r 1988, Scalzo filed another special appearance to quash the summons on the grou nd that he, not being a resident of the Philippines and the action being one in personam, was beyond the processes of the court. The motion was denied by the c ourt, in its order of 13 December 1988, holding that the filing by Scalzo of a m otion for extension of time to file an answer to the complaint was a voluntary a ppearance equivalent to service of summons which could likewise be construed a w aiver of the requirement of formal notice. Scalzo filed a motion for reconsider ation of the court order, contending that a motion for an extension of time to f ile an answer was not a voluntary appearance equivalent to service of summons si nce it did not seek an affirmative relief. Scalzo argued that in cases involvin g the United States government, as well as its agencies and officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the Depart ment of State and the Department of Justice to agree on the defenses to be raise d and (2) to refer the case to a Philippine lawyer who would be expected to firs t review the case. The court a quo denied the motion for reconsideration in its order of 15 October 1989. Scalzo filed a petition for review with the Court of Appeals, there docketed CAG.R. No. 17023, assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on certiorari, dock eted G.R. No. 91173, to this Court. The petition, however, was denied for its f ailure to comply with SC Circular No. 1-88; in any event, the Court added, Scalz o had failed to show that the appellate court was in error in its questioned jud gment. Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for his failure to file a responsive pleading (answe r) and (b) setting the case for the reception of evidence. On 12 March 1990, Sc alzo filed a motion to set aside the order of default and to admit his answer to the complaint. Granting the motion, the trial court set the case for pre-trial . In his answer, Scalzo denied the material allegations of the complaint and ra ised the affirmative defenses (a) of Minucher s failure to state a cause of action in his complaint and (b) that Scalzo had acted in the discharge of his official duties as being merely an agent of the Drug Enforcement Administration of the U nited States Department of Justice. Scalzo interposed a counterclaim of P100,00 0.00 to answer for attorneys' fees and expenses of litigation. Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to dismiss the complaint on the ground that, being a special agent of the United States Drug Enforcement Administration, he was ent itled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order of 25 June 1990, the trial court denied the motio n to dismiss. On 27 July 1990, Scalzo filed a petition for certiorari with injunction with thi s Court, docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. W enceslao Polo, et al.," asking that the complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of Appeals, there dockete d CA-G.R. SP No. 22505, per this Court s resolution of 07 August 1990. On 31 Octo ber 1990, the Court of Appeals promulgated its decision sustaining the diplomati c immunity of Scalzo and ordering the dismissal of the complaint against him. M inucher filed a petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al. (cited in

214 SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, J r., this Court reversed the decision of the appellate court and remanded the cas e to the lower court for trial. The remand was ordered on the theses (a) that t he Court of Appeals erred in granting the motion to dismiss of Scalzo for lack o f jurisdiction over his person without even considering the issue of the authent icity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to the effect that Scalzo committed the imputed acts in his persona l capacity and outside the scope of his official duties and, absent any evidence to the contrary, the issue on Scalzo s diplomatic immunity could not be taken up. The Manila RTC thus continued with its hearings on the case. On 17 November 199 5, the trial court reached a decision; it adjudged: WHEREFORE, and in view of all the foregoing considerations, judgment is hereby re ndered for the plaintiff, who successfully established his claim by sufficient e vidence, against the defendant in the manner following: "`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the sum of P10 million; exemplary damages in the s um of P100,000.00; attorney's fees in the sum of P200,000.00 plus costs. `The Clerk of the Regional Trial Court, Manila, is ordered to take note of the l ien of the Court on this judgment to answer for the unpaid docket fees consideri ng that the plaintiff in this case instituted this action as a pauper litigant. "[ 2] While the trial court gave credence to the claim of Scalzo and the evidence pres ented by him that he was a diplomatic agent entitled to immunity as such, it rul ed that he, nevertheless, should be held accountable for the acts complained of committed outside his official duties. On appeal, the Court of Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his term of duty and there by immune from the criminal and civil jurisdiction of the Receiving State pursuant to the terms of the Vienna Convention. Hence, this recourse by Minucher. The instant petition for review raises a twofold issue: (1) whether or not the doctrine of conclusiveness of judgment, foll owing the decision rendered by this Court in G.R. No. 97765, should have preclud ed the Court of Appeals from resolving the appeal to it in an entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic i mmunity. The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of the prior judgment, 2) a valid jurisdiction ov er the subject matter and the parties on the part of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter a nd causes of action.[3] Even while one of the issues submitted in G.R. No. 9776 5 - "whether or not public respondent Court of Appeals erred in ruling that priv ate respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a pivotal question raised i n the instant petition, the ruling in G.R. No. 97765, however, has not resolved that point with finality. Indeed, the Court there has made this observation "It may be mentioned in this regard that private respondent himself, in his Pretrial Brief filed on 13 June 1990, unequivocally states that he would present do cumentary evidence consisting of DEA records on his investigation and surveillan ce of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved his right to present evidence in support of his position, w hich is the basis for the alleged diplomatic immunity, the barren self-serving c

laim in the belated motion to dismiss cannot be relied upon for a reasonable, in telligent and fair resolution of the issue of diplomatic immunity."[4] Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants him absolute immunity from suit, describing his functions as an agent of the United States Drugs Enforcement Agency as conduc ting surveillance operations on suspected drug dealers in the Philippines believ ed to be the source of prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then) would inform the Philippine narcotic agents (t o) make the actual arrest." Scalzo has submitted to the trial court a number of documents 1. 90; Exh. '2' Diplomatic Note No. 414 dated 29 May 19 Certification of Vice Consul Donna K. W Diplomatic Note No. 757 dated 25 Octobe Diplomatic Note No. 791 dated 17 Novemb Diplomatic Note No. 833 dated 21 Octobe

2. Exh. '1' oodward dated 11 June 1990; 3. Exh. '5' r 1991; 4. Exh. '6' er 1992; and 5. Exh. '7' r 1988. -

6. Exh. '3' 1st Indorsement of the Hon. Jorge R. Co quia, Legal Adviser, Department of Foreign Affairs, dated 27 June 1990 forwardin g Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial court); 7. Exh. '4' e 1st Indorsement (Exh. '3'); and Diplomatic Note No. 414, appended to th

8. Exh. '8' Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs, through Asst. Sec. Emman uel Fernandez, addressed to the Chief Justice of this Court.[5] The documents, according to Scalzo, would show that: (1) the United States Embas sy accordingly advised the Executive Department of the Philippine Government tha t Scalzo was a member of the diplomatic staff of the United States diplomatic mi ssion from his arrival in the Philippines on 14 October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm from the very beginning in asserting the diplomatic immunity of Scalzo with respect to the ca se pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United States Embassy repeatedly urged the Department of Foreig n Affairs to take appropriate action to inform the trial court of Scalzo s diploma tic immunity. The other documentary exhibits were presented to indicate that: (1 ) the Philippine government itself, through its Executive Department, recognizin g and respecting the diplomatic status of Scalzo, formally advised the Judicial D epartment of his diplomatic status and his entitlement to all diplomatic privileg es and immunities under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo additionally pres ented Exhibits "9" to "13" consisting of his reports of investigation on the sur veillance and subsequent arrest of Minucher, the certification of the Drug Enfor cement Administration of the United States Department of Justice that Scalzo was a special agent assigned to the Philippines at all times relevant to the compla int, and the special power of attorney executed by him in favor of his previous counsel[6] to show (a) that the United States Embassy, affirmed by its Vice Cons

ul, acknowledged Scalzo to be a member of the diplomatic staff of the United Sta tes diplomatic mission from his arrival in the Philippines on 14 October 1985 un til his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law enforcement officials and in the exercise of his function s as member of the mission, he investigated Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign Affairs its elf recognized that Scalzo during his tour of duty in the Philippines (14 Octobe r 1985 up to 10 August 1988) was listed as being an Assistant Attach of the Unite d States diplomatic mission and accredited with diplomatic status by the Governm ent of the Philippines. In his Exhibit 12, Scalzo described the functions of th e overseas office of the United States Drugs Enforcement Agency, i.e., (1) to pr ovide criminal investigative expertise and assistance to foreign law enforcement agencies on narcotic and drug control programs upon the request of the host cou ntry, 2) to establish and maintain liaison with the host country and counterpart foreign law enforcement officials, and 3) to conduct complex criminal investiga tions involving international criminal conspiracies which affect the interests o f the United States. The Vienna Convention on Diplomatic Relations was a codification of centuries-ol d customary law and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among the city states of ancient Greece, among the peoples of the Mediterranean before the establishment of the Roman Empire, a nd among the states of India, the person of the herald in time of war and the pe rson of the diplomatic envoy in time of peace were universally held sacrosanct.[ 7] By the end of the 16th century, when the earliest treatises on diplomatic la w were published, the inviolability of ambassadors was firmly established as a r ule of customary international law.[8] Traditionally, the exercise of diplomatic intercourse among states was undertaken by the head of state himself, as being the preeminent embodiment of the state he represented, and the foreign secretary , the official usually entrusted with the external affairs of the state. Where a state would wish to have a more prominent diplomatic presence in the receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by and large, the representation of the interests of the sending state and promoting fr iendly relations with the receiving state.[9] The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited to the heads of state,[10] (b) envoys,[11] min isters or internuncios accredited to the heads of states; and (c) charges d' aff airs[12] accredited to the ministers of foreign affairs.[13] Comprising the "st aff of the (diplomatic) mission" are the diplomatic staff, the administrative st aff and the technical and service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the members of the administrative, t echnical and service staff of the mission, are accorded diplomatic rank. Even w hile the Vienna Convention on Diplomatic Relations provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively applied. Only "diplomatic agents," under the ter ms of the Convention, are vested with blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of mis sions or members of the diplomatic staff, thus impliedly withholding the same pr ivileges from all others. It might bear stressing that even consuls, who repres ent their respective states in concerns of commerce and navigation and perform c ertain administrative and notarial duties, such as the issuance of passports and visas, authentication of documents, and administration of oaths, do not ordinar ily enjoy the traditional diplomatic immunities and privileges accorded diplomat s, mainly for the reason that they are not charged with the duty of representing their states in political matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whet her or not he performs duties of diplomatic nature.

Scalzo asserted, particularly in his Exhibits 9 to 13, that he was an Assistant Atta ch of the United States diplomatic mission and was accredited as such by the Phil ippine Government. An attach belongs to a category of officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or fi nancial affairs. There could also be a class of attaches belonging to certain m inistries or departments of the government, other than the foreign ministry or d epartment, who are detailed by their respective ministries or departments with t he embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his duties and are administratively under him, but their main function is to observe, analyze and interpret trends and developments in their respective field s in the host country and submit reports to their own ministries or departments in the home government.[14] These officials are not generally regarded as member s of the diplomatic mission, nor are they normally designated as having diplomat ic rank. In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all issued post litem motam, respectively, on 29 May 1990 , 25 October 1991 and 17 November 1992. The presentation did nothing much to al leviate the Court's initial reservations in G.R. No. 97765, viz: "While the trial court denied the motion to dismiss, the public respondent grave ly abused its discretion in dismissing Civil Case No. 88-45691 on the basis of a n erroneous assumption that simply because of the diplomatic note, the private r espondent is clothed with diplomatic immunity, thereby divesting the trial court of jurisdiction over his person. x x x x x x And now, to the core issue - the alleged diplomatic immunity of the private respo ndent. Setting aside for the moment the issue of authenticity raised by the pet itioner and the doubts that surround such claim, in view of the fact that it too k private respondent one (1) year, eight (8) months and seventeen (17) days from the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking for a first extension of time to file the Answer because the Departments of State and Justice of the United States of America were studying the case for the purpose of determining his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even granting for the sake of argument t hat such note is authentic, the complaint for damages filed by petitioner cannot be peremptorily dismissed. x x x x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his official capacity. Nothing supports this self-serving claim o ther than the so-called Diplomatic Note. x x x. The public respondent then sho uld have sustained the trial court's denial of the motion to dismiss. Verily, i t should have been the most proper and appropriate recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet been proved. The undue haste wi th which respondent Court yielded to the private respondent's claim is arbitrary ." A significant document would appear to be Exhibit No. 08, dated 08 November 1992 , issued by the Office of Protocol of the Department of Foreign Affairs and sign ed by Emmanuel C. Fernandez, Assistant Secretary, certifying that "the records o f the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988) was liste

d as an Assistant Attach of the United States diplomatic mission and was, therefo re, accredited diplomatic status by the Government of the Philippines." No cert ified true copy of such "records," the supposed bases for the belated issuance, was presented in evidence. Concededly, vesting a person with diplomatic immunity is a prerogative of the ex ecutive branch of the government. In World Health Organization vs. Aquino,[15] the Court has recognized that, in such matters, the hands of the courts are virt ually tied. Amidst apprehensions of indiscriminate and incautious grant of immu nity, designed to gain exemption from the jurisdiction of courts, it should beho ove the Philippine government, specifically its Department of Foreign Affairs, t o be most circumspect, that should particularly be no less than compelling, in i ts post litem motam issuances. It might be recalled that the privilege is not an immunity from the observance of the law of the territorial sovereign or from en suing legal liability; it is, rather, an immunity from the exercise of territori al jurisdiction.[16] The government of the United States itself, which Scalzo c laims to be acting for, has formulated its standards for recognition of a diplom atic agent. The State Department policy is to only concede diplomatic status to a person who possesses an acknowledged diplomatic title and performs duties of d iplomatic nature. [17] Supplementary criteria for accreditation are the possessio n of a valid diplomatic passport or, from States which do not issue such passpor ts, a diplomatic note formally representing the intention to assign the person t o diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an essentially full-time ba sis.[18] Diplomatic missions are requested to provide the most accurate and des criptive job title to that which currently applies to the duties performed. The Office of the Protocol would then assign each individual to the appropriate fun ctional category.[19] But while the diplomatic immunity of Scalzo might thus remain contentious, it wa s sufficiently established that, indeed, he worked for the United States Drug En forcement Agency and was tasked to conduct surveillance of suspected drug activi ties within the country on the dates pertinent to this case. If it should be as certained that Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the present controversy could th en be resolved under the related doctrine of State Immunity from Suit. The precept that a State cannot be sued in the courts of a foreign state is a lo ng-standing rule of customary international law then closely identified with the personal immunity of a foreign sovereign from suit[20] and, with the emergence of democratic states, made to attach not just to the person of the head of state , or his representative, but also distinctly to the state itself in its sovereig n capacity.[21] If the acts giving rise to a suit are those of a foreign govern ment done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immun ity of the foreign sovereign from suit without its consent. Suing a representat ive of a state is believed to be, in effect, suing the state itself. The proscr iption is not accorded for the benefit of an individual but for the State, in wh ose service he is, under the maxim - par in parem, non habet imperium - that all states are sovereign equals and cannot assert jurisdiction over one another.[22 ] The implication, in broad terms, is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the awar d, such as the appropriation of the amount needed to pay the damages decreed aga inst him, the suit must be regarded as being against the state itself, although it has not been formally impleaded.[23] In United States of America vs. Guinto,[24] involving officers of the United Sta tes Air Force and special officers of the Air Force Office of Special Investigat ors charged with the duty of preventing the distribution, possession and use of prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against t he state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that they were acting i n their private or unofficial capacity when they apprehended and later testified against the complainant. It follows that for discharging their duties as agent s of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued. x x x As they have acted on behalf of the government, and within the scope of their authority, it is that government, and not the petitioners personally, [who were] responsible f or their acts."[25] This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals[26] elaborates: It is a different matter where the public official is made to account in his capa city as such for acts contrary to law and injurious to the rights of the plainti ff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of T elecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of governmen t officials or officers are not acts of the State, and an action against the off icials or officers by one whose rights have been invaded or violated by such ac ts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said t hat an action at law or suit in equity against a State officer or the director o f a State department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have , is not a suit against the State within the constitutional provision that the S tate may not be sued without its consent. The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. x x x x x x x x x

(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ord inary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. Th is situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law th at a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyon d the scope of his authority and jurisdiction. [27] A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the dir ectives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf bot h involve officers and personnel of the United States, stationed within Philippi ne territory, under the RP-US Military Bases Agreement. While evidence is wanti ng to show any similar agreement between the governments of the Philippines and of the United States (for the latter to send its agents and to conduct surveilla nce and related activities of suspected drug dealers in the Philippines), the co nsent or imprimatur of the Philippine government to the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts heretofo re elsewhere mentioned. The official exchanges of communication between agencie s of the government of the two countries, certifications from officials of both

the Philippine Department of Foreign Affairs and the United States Embassy, as w ell as the participation of members of the Philippine Narcotics Command in the bu y-bust operation conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough indication that the Philippine government has given its imprimatur, if n ot consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has taske d him to conduct surveillance on suspected drug suppliers and, after having asce rtained the target, to inform local law enforcers who would then be expected to make the arrest. In conducting surveillance activities on Minucher, later actin g as the poseur-buyer during the buy-bust operation, and then becoming a princip al witness in the criminal case against Minucher, Scalzo hardly can be said to h ave acted beyond the scope of his official function or duties. All told, this Court is constrained to rule that respondent Arthur Scalzo, an ag ent of the United States Drug Enforcement Agency allowed by the Philippine gover nment to conduct activities in the country to help contain the problem on the dr ug traffic, is entitled to the defense of state immunity from suit. WHEREFORE, on the foregoing premises, the petition is DENIED. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur [1] Rollo, pp. 39-42. [2] Rollo. p. 51. [3] Linzag vs. CA, 291 SCRA 304. [4] Minucher vs. Court of Appeals, 214 SCRA 242. [5] For documentary Exhibits Nos. 1-8, see Rollo, pp. 143-155. [6] For Documentary Exhibits Nos. 9-13, See Rollo, pp. 156-168. [7] Eileen Denza, "Diplomatic Law, A Commentary on the Vienna Convention on Dipl omatic Relations," 2nd Edition, Claredon Press, Oxford, 1998, at 210. [8] Ibid. [9] Article 3 of the Vienna Convention enumerates the functions of the diplomati c mission as (a) representing the sending State in the receiving State;

(b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; (c) negotiating with the Government of the receiving State;

(d) ascertaining by all lawful means conditions and developments in the r eceiving State, and reporting thereon to the Government of the sending State; (e) promoting friendly relations between the sending State and the receiv ing State, and developing their economic, cultural and scientific relations. [10] Ambassadors are diplomatic agents of the first class, who deal, as a rule w ith the Minister of Foreign Affairs or the Secretary of State, as the case may b

e. (Melquiades J. Gamboa, "Elements of Diplomatic and Consular Practice, A Glos sary," Central Lawbook Publishing, Co., 1966, p. 19.) [11] Envoys are diplomatic agents of the second class. This is the title of the head of legation as distinguished from an embassy, the head of which is called Ambassador Extraordinary and Plenipotentiary. Like the Ambassador, the envoy is also accredited to the Head of State. (Gamboa, p. 190.) [12] Charges d' Affairs are either en titre or ad interim. Charges d' Affairs e n titre are appointed on a permanent basis and belong to the fourth class of dip lomatic envoys, the other three being ambassadors, ministers plenipotentiary and envoys extraordinary, and ministers resident. He is the head of the legation i n his own right and is not accredited to the head of State but to the foreign of fice. According to Radloric, charges d' affairs are sometimes used to described a person who has been placed in custody of the archives and other property of a mission in a country with which formal diplomatic relations are not maintained. Charges d' affairs ad interim, in contrast are usually those second in command of the diplomatic mission minister, counselor or first secretary, who are only temporarily in charge of the mission during the absence of the head of the missi on. He is not accredited either to the Head of State or the Foreign Office. (G amboa, Ibid., pp. 51-52.) [13] The classification of diplomatic representatives was considered significant before because direct communication with the head of state depended on the rank of the diplomat and, moreover, only powerful states were regarded as entitled t o send envoys of the highest rank. At present however, diplomatic matters are u sually discussed not with the head of state but with the foreign secretary regar dless of the diplomat's rank. Moreover, it has become the practice now for even the smallest and the weakest states to send diplomatic representatives of the h ighest rank, even to the major powers. (Cruz, International Law, 1985 Edition, p. 145.) [14] Gamboa, supra., pp. 32-33. [15] 48 SCRA 242. [16] J.L. Brierly, "The Law of Nations," Oxford University Press, 6th Edition, 1 963, p. 244. [17] Denza, supra., at 16. [18] Ibid. [19] Ibid., at 55. [20] Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc., New York, 1948, p. 307-308. [21] The international law on sovereign immunity of states from suit in the cour ts of another state has evolved from national court decisions with good deal of variance in perspectives. Even though national cases have been the major source of pronouncements on sovereign immunity, it should be noted that these constitu te evidence of customary international law now widely recognized. In the latter half of the 20th century, a great deal of consensus on what is covered by sover eign immunity appears to be emerging, i.e., that state immunity covers only acts which deal with the government functions of a state, and excludes, any of its c ommercial activities, or activities not related to "sovereign acts." The consen sus involves a more defined differentiation between public acts (juri imperii) a nd private acts (jure gestionis). (Gary L. Maris, International Law, An Introduc tion, University Press of America, 1984, p. 119; D.W. Grieg, "International Law,"

London Butterworths, 1970, p. 221.) The United States for example, does not claim immunity for its publicly owned or operated merchant vessels. The Italian courts have rejected claims of immunity from the US Shipping Board, although a state body, as it could not be identifie d with the American government on the ground that undertaking maritime navigatio n and business as a commercial enterprise do not constitute a sovereign act. (D .W. Grieg, International Law, London Butterworths, 1970, p. 221.) [22] See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in Charles G . Fenwick, "International Law," New York, 3rd Edition (1948), p. 307. [23] United States of America, et al. vs. Guinto, etc., et al., G.R. No. 76607, 26 February 1990. [24] 182 SCRA 644. [25] At pp. 653-659. [26] 191 SCRA 713 [27] At pp. 727-728.